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Respondeo: A Reply to Michael Sean Winters (part 2)

I continue my response to Michael Sean Winters's column responding to my column. Part 1 of the response can be found here.2. The AccommodationSo where are we now? Weve moved beyond the original narrow exemption, at least in spe. Last year, the Obama administration sketched a possible accommodation for the objections of Catholic hospitals and universities. I outlined that accommodation in the column. Before going into more detail about the accommodation, Id like to say few words about how religiously infused moral judgments do and do not enter into the American political processand how the church's view about contraception matters to the process of lawmaking.Lets begin by acknowledging that official Roman Catholic teaching holds that the moral act described as contracepting is always wrong because it separates the unitive and procreative goods (fidesprolesque) meant to be joined together in a sexual act. The church teaches that contraception is wrong as a matter of natural lawwhich means that it is wrong for all human beings to do, no matter whether they are Catholic or not. What if they dont agree? Well, the church teaches that they're wrong. The church also teaches that she herself is an expert in humanity, and is in a privileged position to interpret the natural law.How should this moral teaching about contraception be translated into the law in an American pluralistic democracy? Well, the church has always acknowledged that morality and law dont coincide entirely. So, John Courtney Murray and others argued long ago that contraception should not be illegal. But they also thought it probably shouldnt be encouraged either.From the bishops perspective, the problem with the contraceptive mandate is that it is encouraging contraception: Its one thing to fail to prohibit contraception; its another thing entirely to require it to be included in a basic benefit package. From the perspective of official Catholic teaching, there are two problems with the mandate: 1) it wrongly teaches that contraception is morally acceptable; and 2) it makes it widely available.So the first thing to note is that the bishops oppose the mandate, tout court, because they think it encourages a practice that will harm individuals and the common good. This opposition is a perfectly legitimate use of political freedom in the United States. Like other citizens, the bishops are free to make their case about the immorality of contraception in the public square, and to argue against any form of mandate based on that argument. And they did just that.But they lost that case: most people in the United States do not think that contraception is intrinsically immoral. In fact, they think it can be a useful way to fulfill their moral responsibilities to their children and themselves. Some might even say for themselves that it is morally required. Moreover, unlike the bishops, they think the widespread availability of contraception contributes to the common good. So we have a mandate. And the mandate is on the books as valid law.This is important: the bishops can and did argue that the mandate is unacceptable because it goes against the common good. What it seems to me they cant plausibly argue is that the mandate as a whole is unacceptable because it violates their religious freedom.

In a representative democracy, the majority is going to make the lawand law is coercive. So a pacifist cant argue, The country cant go to war at all, because going to war violates my religious freedom. A Christian Scientist cant plausibly argue, The country cant invest in medicine because it goes against my religious beliefs. And the bishops cant plausibly argue that the country cant have a contraceptive mandate as part of a basic benefit package because it violates Catholic teaching. Otherwise, one person's claim of religious liberty would functionally veto any ordinary law making. No law and religion scholar is going to say that is what the First Amendment requires. In fact, requiring the general law not to ever conflict with Catholic moral teaching would not be protecting religious freedom of Catholics; it would be enshrining Roman Catholicism as the established religion. The church can say that its Magisterium is the privileged interpreter of natural law. But the state just cant do that in the American system. What the bishops can and do argue, however, is that respect for religious liberty compels the government to grant an exception to the mandate in their case.So how do we go about thinking about exemptions based on religious-liberty claims? It is important to note that the government provided an exemption on its ownbefore any of this went to court. As my column detailed, the government first proposed a narrower exemption for religious institutions that (1) are mainly concerned with passing down the faith, (2)mainly employ their co-religionists, (3) mainly serve their co-religionists, and (4) are not-for-profit charitable corporations.Not only would such employers not have to cover contraception, their employees wouldn't get it covered by anyone. After a firestorm of protest, the Obama administration promised an accommodation that would insure that Catholic hospitals and colleges wouldn't have to pay for, provide, or refer for such services, but that employees of these entities would still have first-dollar contraceptive coverage. And thats where we are now.Is this the right place to be? In order to answer this question, we have to recognize that claims of religious liberty are never treated as absolute. The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: The mandate interferes with religious liberty...and it doesnt serve a compelling state interest because it harms women and children, so it should be struck down." Thats a no-go. The church cant put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law. Part of what I wanted to show in the column is that, taken on its own terms, the governments case is quite substantiaaccording to the National Institute of Medicine, the health of women and children is at stake.So, on to the accommodation itself. As I argued in the column, I think the accommodation is trying to give very high protection to Catholic hospitals and universitiesit says they won't have to provide, arrange, or pay for contraceptive services. But it is also trying to make sure that the purposes of the mandate get fulfilled, by ensuring that employees of these institutions get access to contraceptives. It repeatedly and explicitly honors the religious mission of these institutions.Is all of this adequate? As we look at this question, I think we need to separate two sub-issues: (1) does the accommodation sufficiently protect the religious liberty of Catholic institutions; and (2) is it clear, clean, simple, and workable. In my view, the accommodation does adequately protect the religious liberty of Catholic institutions; and it is a hot mess in terms of function. I think it is important to distinguish these two points.So I ask Michael Sean Winters to go back the actual text of the proposed accommodation, and take a second look. I ask him to consider whether it sufficiently respects the religious liberty of Catholic hospitals and universities. Doesnt it take pains to acknowledge the religious motives of, say, Catholic universities and Catholic parishes? Doesnt it bend over backwards to try to find a solution to the objections on the part of places like Notre Dame, while still protecting access for employees? Winters might object that the accommodation is cumbersome and bothersome and too complicated. All that is true.There are better ways to do this. And they should be advocated, as the Catholic Health Association and others are doing.But at the same time, its important to keep in mind that religious liberty claims don't entail a right to escape cumbersome and bothersome and complicated laws. If Catholic hospitals and universities are exempted, by no matter how cumbersome a method, they wont have standing to sue. In fact, Notre Dames lawsuit was just dismissed on procedural grounds, because the administration has promised them an accommodation that will exempt them from the mandate. Even courts that didnt dismiss suits on this ground recognize that the accommodation, once finalized, will affect the appropriate analysis.Were at a point in the national discussion, I think, where general clarion calls for religious freedom wont help. We need to get into the weedsand discuss the strengths and weaknesses of the options on the table.Tomorrow: RFRA analysis and United States v. LeeThe Weekend: Do Employees Have Religious Freedom Rights?

The argument that the mandate is good law, therefore, there should be no exceptions, not even on the basis of a religious claim, might be a good argument *if* there were no way for those not covered because of the religious exemptions could get the contraceptives easily and free. But there are ways for those wanting them to get them free, e.g., if the government or even the insurance companies themselves paid for them. *They*, the government or insurance companies, would then be meeting the mandate as surrogates for the religious emplouers, so the general mandate would hold.

Ann Olivier, the issue of whether the HHS mandate is the "least intrusive method of achieving the goal" will be decided by the Supreme Court once a case gets to them. That is part of the test required by RFRA. The government has said it intends to issue proposed rules defining the exemption by the end of the first quarter of 2013. After receiving public comments, they will adopt final rules by August 2013. Until they do that, we don't know what solution they will propose so it's just speculation at his point as to whether it will pass Supreme Court scrutiny under RFRA.

Ann OlivierAs I understand it, there are three categories and they are already defined:1. Narrow "religious" definition entities: churches, etc. They are already exempt from the contraception mandate.2. Non-profit entities with religious objections to providing contraception coverage. This covers most Catholic hospitals, universities, charities, etc. Rules for them are to be released in first quarter 2013 and made final by August 2013.3 Others (Hobby Lobby, etc) Entities that are not non-profit don't get any exemption. The second category breaks into two groups:A. Those who buy insurance. Discussions so far have been that the insurance company will provide the contraception coverage without cost to the hospital, university, etc. B. Those who self-insure (they don't buy insurance but pay health costs out of their own money). I haven't seen a convincing proposal for them yet.

All this has caused me to return to John Courtney Murray. It amazes me to see that the issues he confronted from 1945-1967 have resurfaced, with what he refuted as the "canonist" position adopted again by the bishops with smug arrogance. Michael Winters should read Murray again. Murray complained that the Church, in changing its intolerant ways for a freedom of religion position during the Vatican Council, had not developed arguments strong enough to support that new position. This has returned to haunt us. In putting both thumbs on the scale, as Kaveny put it, the Church has returned to the religious tolerance position...ie, as soon as we can, we will force our view upon the pluralistic society. This is the end of religious freedom and reveals the bishops' position as pure hypocrisy, a blatant rejection of the religious freedom position embraced by the Vatican Council.

The issue is whether Catholic institutions will have autonomy to govern themselves according to Catholic principles. Every Administration before Obama's answered yes to that question. Obama answers no, and clearly intends to use federal power to force Catholic institutions to conform to the demands of liberal secularism.

I agree with Nickol and Perry and particularly appreciate the examples given to understand and explain this to others. One aspect that I have inquired about previously and was never answered to my knowledge (not that anyone should do my own work!), is what is the practice of other religions regarding non-confessing employees or in instiututions they serve -- i.e., Seventh Day Adventists and Jehovah's Witnesses with the restrictions that ehy place on aspects of helath and health care?

as soon as we can, we will force our view upon the pluralistic societyThe above statement, as well as Cathy's and Michael's comments, show that we have completely lost sight of Truth. Truth is that the normal healthy woman between puberty and menopause would be fertile. In fact, such a woman would need health care if she were infertile. Further, there is no deleterious health effect created by abstaining from sex. So claiming that contraceptives are necessary for women's health is a falsehood, just like statements such as "two mommies" and "two daddies". Pluralism and diversity do not and can not make falsehoods truthful. And no one needs to resort to religious claims to establish the truthfulness of these claims: simple biology reveals these truths.The Church and all of us, including Cathy and Michael, should be fighting for Truth if for no other reason than to preserve the integrity of our society and government.

Bruce, as Professor Kaveney said in her post: "The church also teaches that she herself is an expert in humanity, and is in a privileged position to interpret the natural law."but,"The church can say that its Magisterium is the privileged interpreter of natural law. But the state just cant do that in the American system."

From the post:"The government (in the first instance) and the courts (in the final instance) need to look not only at the religious-liberty claims, but also at the purposes advanced by the law in question. Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant. I have seen some bloggers trying to run the religious-liberty argument this way: The mandate interferes with religious libertyand it doesnt serve a compelling state interest because it harms women and children, so it should be struck down. Thats a no-go. The church cant put both thumbs on the judicial scale, so to speak. The church can talk about the invasion of its own religious liberty, but the government gets to make the case for the purposes advanced by the law. Part of what I wanted to show in the column is that, taken on its own terms, the governments case is quite substantiaaccording to the National Institute of Medicine, the health of women and children is at stake."This seems to be a pretty important part of the argument, and so I'm trying to digest what it means. In this sentence: "Moreover, it needs to look at those purposes in the terms set by the government, not by the religious-liberty claimant" - it's not clear what the antecedent of the pronoun "it" is. Based on the sentence that precedes it, I assume "it" is the courts?If I'm understanding this correctly, then may I ask: why are the terms set by the government to be privileged over the view of the entities that allege infringement of their religious-liberty rights? My (legal) layperson's American-civics view is that the point of religious-liberty constitutional protections is to privilege the infringed minority's right to religious practice over against the coercion of the government. And while I agree that the government 'gets to make a case for the purposes advanced by the law', shouldn't the burden be on the government to demonstrate that its (alleged) infringement is so compelling that it overrides the minority's constitutional protection?

JIm Pauwels. when one of these cases gets to the Supreme Court, the wo conditions required by RFRA are 1) that the requirement serves a compelling government interest, and 2) that it is the least restrictive way of accomplishing that interest. The government has to prove that it serves a compelling government interest. The other party can argue that it doesn't, but my guess is that the Court will be reluctant to put itself in the place of the government in making that decision since the requirement is based on a recommendation of the Institute of Medicine. If the Court agrees that it meets the "compelling government interest" test, the other party could argue that there is another method of satisfying that interest that would be less restrictive. Personally, I doubt that the argument that the government could just provide free contraceptives at government expense to everyone in the country would win, but is this even an alternative that the bishops would want to support?

It should also be pointed out that every argument that Prof. Caveny makes would be equally applicable to a regulation requiring employers to provide insurance for surgical abortions. If the current HHS mandate is approved by the courts, the Obama Administration could easily implement such a regulation: all that is required would be a stroke of Secretary Sebelius' pen certifying that surgical abortion is "preventive care" within the meaning of the Affordable Care Act.

"The government has to prove that it serves a compelling government interest. The other party can argue that it doesnt, but my guess is that the Court will be reluctant to put itself in the place of the government in making that decision since the requirement is based on a recommendation of the Institute of Medicine."The Institute of Medicine presumably is competent to make a medical judgment, but it is not authoritative on matters of morality and religious practice. But it seems to me that this is precisely the question that needs to be decided: is the medical "necessity" of free contraception so compelling to the government that it overrides the constitutionally guaranteed right of religious institutions to practice their religions. "If the Court agrees that it meets the compelling government interest test, the other party could argue that there is another method of satisfying that interest that would be less restrictive. Personally, I doubt that the argument that the government could just provide free contraceptives at government expense to everyone in the country would win"There is already a less restrictive method: the marketplace for prescription drugs, in combination with already-existing government and private subsidies. The FDA, in approving those drugs for sale, has already satisfied the "compelling government interest" in making contraception available.

" But it seems to me that this is precisely the question that needs to be decided: is the medical necessity of free contraception so compelling to the government that it overrides the constitutionally guaranteed right of religious institutions to practice their religions."I don't think here is any balancing involved. If you say the government action infringes your religious freedom, the courts tend to take your word for it - otherwise they would get entangled in evaluating your religious beliefs, which is not something the overnment or the courts can do. Once you say the magic words, you pretty much get teh advantage of the strict scrutiny provided by RFRA. However, for the same reason, he court can''t evaluate how much of an infringement this is on your religious liberty and say "well, this is a big infringement so there has to be a more compelling government interest to justify it" the question is just whether here is or isn't a compelling government interest. Regarding less restrictive methods, the stated governmnt interest s in making contraception available without cost to the user. The fact ht it can be bought in a drugstore doesn't make it free.

Claire,I think Cathy's presupposition that the government has the right, ability, obligation, etc to do what is has done is entirely false. It only has the power to force its falsehood on the population. So I think that we (and she) have lost sight of the forest for the trees. And frankly, using its power to force a falsehood on its citizens ultimately undermines the government.As an aside, John Hayes statement: ...without cost to the user... demonstrates how ludicrous the whole mandate is. The governments position is essentially this: we realize contraceptives are readily available, but some potential users wont pay for them so we will force someone else to do it for those users. Could anything be more petty?

" If you say the government action infringes your religious freedom, the courts tend to take your word for it "That is good to know. I'd like to think that is the end of the story. Whether it is a big infringement or a little infringement, it would seem to be an infringement.We know that courts have recognized limits to religious practicioners' rights to be free of government coercion: as when a life is at stake (blood transfusions), or for reasons of national defense and security (exemptions from military service). And on the other hand, courts have determined that some government coercions aren't compelling (in the case of Hosanna-Tabor, apparently the ADA is not sufficiently compelling). It just seems to me that, in fact, the courts are in the business of sorting out what constitutes a compelling infringement and what doesn't.

"If the current HHS mandate is approved by the courts, the Obama Administration could easily implement such a regulation: all that is required would be a stroke of Secretary Sebelius pen certifying that surgical abortion is preventive care within the meaning of the Affordable Care Act."Thorin - the President's executive order presumably would block this. Although that, too, could disappear with a stroke of the pen. Also, I don't think the HHS Secretary has complete discretion to define what is considered "preventive care". My understanding is that the Secretary is compelled to accept the recommendations of some allegedly-independent body. But as I stated above, I have no reason to trust the moral judgment of that independent body.

Jim Pauwels, the ACA requires a long list of preventative services to be provided without cost to the user. The idea is the insured will be more likely to use these if they are free."Since September 2010, insurers have been barred from levying out-of-pocket costs on patients receiving mammograms and colonoscopies, two of the most widely used forms of preventative care....""As of Aug. 1 [2012], insurance plans are required to cover free annual physicals for women, HIV testing and counseling, HPV DNA testing, screenings for gestational diabetes, screening and counseling for domestic violence, breastfeeding medical support, counseling for sexually transmitted infections, and FDA-approved contraceptive productshttp://theweek.com/article/index/231466/5-obamacare-provisions-you-can-a...

"Jim Pauwels, the ACA requires a long list of preventative services to be provided without cost to the user. The idea is the insured will be more likely to use these if they are free."Breast cancer, diabetes, STDs and so on are serious diseases, and to my knowledge, testing for them doesn't infringe any religious rights. It could be argued that the federal government and society have a strong and compelling interest in the health of its citizens, and of course nobody has an interest in the spread of these serious illnesses.Contraception is not the same kind of thing. Pregnancy is not a disease, and being forced to pay for contraception infringes religious liberty (according to those whose liberty is being infringed). What's more, it could be argued that the federal government and society have a strong and compelling interest in *encouraging* pregnancies in stable families.

Interesting that the law sometimes requires the insurance companies to pay the whole costs of some treatments, etc. Certainly it is in everyone's best interest that they should do so, including the insurance companies themselves.

In my view there's a "causation" problem with the Church's concerns. In short, the Church is not being asked to dispense contraception to its employees. It is being asked to provide to the employee a second means of obtaining them. The first means of obtaining contraceptives is the paycheck. An act of the employee following upon a decision of the employee is required before there is an question of use of contraceptives in either way; until there was insurance, the paycheck was the means. Now that there is insurance, insurance may or may not become the means.

Jim pauwels, quoting from Professor Kaveney's post above" From the perspective of official Catholic teaching, there are two problems with the mandate: 1) it wrongly teaches that contraception is morally acceptable; and 2) it makes it widely available.So the first thing to note is that the bishops oppose the mandate, tout court, because they think it encourages a practice that will harm individuals and the common good. This opposition is a perfectly legitimate use of political freedom in the United States. Like other citizens, the bishops are free to make their case about the immorality of contraception in the public square, and to argue against any form of mandate based on that argument. And they did just that.But they lost that case: most people in the United States do not think that contraception is intrinsically immoral. In fact, they think it can be a useful way to fulfill their moral responsibilities to their children and themselves. Some might even say for themselves that it is morally required. Moreover, unlike the bishops, they think the widespread availability of contraception contributes to the common good. So we have a mandate. And the mandate is on the books as valid law.This is important: the bishops can and did argue that the mandate is unacceptable because it goes against the common good. What it seems to me they cant plausibly argue is that the mandate as a whole is unacceptable because it violates their religious freedom.In a representative democracy, the majority is going to make the lawand law is coercive. So a pacifist cant argue, The country cant go to war at all, because going to war violates my religious freedom. A Christian Scientist cant plausibly argue, The country cant invest in medicine because it goes against my religious beliefs. And the bishops cant plausibly argue that the country cant have a contraceptive mandate as part of a basic benefit package because it violates Catholic teaching. Otherwise, one persons claim of religious liberty would functionally veto any ordinary law making. No law and religion scholar is going to say that is what the First Amendment requires. In fact, requiring the general law not to ever conflict with Catholic moral teaching would not be protecting religious freedom of Catholics; it would be enshrining Roman Catholicism as the established religion. The church can say that its Magisterium is the privileged interpreter of natural law. But the state just cant do that in the American system. What the bishops can and do argue, however, is that respect for religious liberty compels the government to grant an exception to the mandate in their case."I think what that last sentence means is that the bishops can lobby Congress to pass legislation exempting persons with religious objections from the mandate to provide insurance covering contraception. That is different from arguing that the mandate is unconstitutional. The bishops can argue that too, but it is not obvious that the Supreme court will agree with them.

"I think what that last sentence means is that the bishops can lobby Congress to pass legislation exempting persons with religious objections from the mandate to provide insurance covering contraception."Or better still, work cooperatively (rather than confrontationally) with HHS and the President between now and next August to try to shape the language of the promised exemption to be something the bishops can live with.

Cathleen:"Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability"What PERSON'S exercise of religion is being substantially burdened by the HHS mandate?

Jjxgillis, note that there i an exception to hat quote from RFRA:"(a) In generalGovernment shall not substantially burden a persons exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b) ExceptionGovernment may substantially burden a persons exercise of religion only if it demonstrates that application of the burden to the person(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive means of furthering that compelling governmental interest."Regarding "person", remember that Mitt Romney assured us that "corporations are persons"However, some lawsuits have been brought by individuals who own for-profit companies.

John Hayes:Indeed. But I don't think we even need the exception to demolish the USCCB's argument.Your second point is closer to what I'm getting at, but even then, no human being's free exercise is burdened. If Cardinal Dolan doesn't want to take contraception, it's easy: He shouldn't take it.

jfxgillis.RFRA says "person" not "human being". Despite my mention of Mitt Romney, the Supreme Court agrees that corporations are persons. The corporation that runs a Catholic hospital or university can benefit from RFRA.

"the Supreme Court agrees that corporations are persons."Maybe not. In turning down Hobby Lobby, Judge Sotomayor said that the Court hasn't addressed this question in this context (I was thnking of Citizens United)"This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the man- datory provision of certain employee benefits substantially burdens their exercise of religion. Cf. United States v. Lee, 455 U. S. 252 (1982) (rejecting free exercise claim brought by individual Amish employer who argued that paying Social Security taxes for his employees interfered with his exercise of religion)."http://www.supremecourt.gov/opinions/12pdf/12a644_k53l.pdfThe Washington Post points out hat even though lawsuits by Catholic hospitals, universities, etc are on hold until the final HHS regulations on heir emption from the contraceptive mandate are issued, lawsuits by private companies, like Hibby lobby are proceding. http://www.washingtonpost.com/politics/employers-challenging-health-law-...